25 May 2010

MCOCA constitutionally valid: Supreme Court

Holding that the provision of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) were not in conflict of the Constitution, the Supreme Court in a recent decision has declared that the Maharashtra does not run foul of the Parliamentary enactment 'Unlawful Activities (Prevention) Act, 1967'. It was argued before the Court that in terms of Article 254 of the Constitution, a State enacted law could not stand on the face of a Parliamentary law on the same subject and therefore the Maharashtra enactment was to be declared as unconstitutional, being repugnant to the Parliamentary enactment. 

The Bench, however, was no convicted. Referring to the various principles of constitutional interpretation, and in particular the doctrine of pith and substance and the doctrine of repugnancy (which we have covered in separate posts), it was observed that the scope and ambit of MCOCA was different from the Parliamentary enactment and both the laws covered different fields. In the ultimate analysis, it was observed as under;

60. A perusal of the Preamble, the Statement of Objects and Reasons and the Interpretation clauses of the MCOCA and the UAPA would show that both the acts operate in different fields and the ambit and scope of each is distinct from the other. So far as the MCOCA is concerned, it principally deals with prevention and control of criminal activity by organised crime syndicate or gang within India and its purpose is to curb a wide range of criminal activities indulged in by organised syndicate or gang. The aim of the UAPA, on the other hand, is to deal with terrorist and certain unlawful activities, which are committed with the intent to threaten the unity, integrity, security or sovereignty of India or with the intent to strike terror in the people or any section of the people in India or in any foreign country or relate to cessation or secession of the territory of India. 
61. Under the MCOCA the emphasis is on crime and pecuniary benefits arising therefrom. In the wisdom of the legislature these are activities which are committed with the objective of gaining pecuniary benefits or economic advantages and which over a period of time have extended to promoting insurgency. The concept of the offence of ‘terrorist act’ under section 15 of the UAPA essentially postulates a threat or likely threat to unity, integrity, security and sovereignty of India or striking terror amongst people in India or in foreign country or to compel the Government of India or the Government of a foreign country or any other person to do or abstain from doing any act. The offence of terrorist act under Section 15 and the offence of Unlawful activity under Section 2 (1) (o) of the UAPA have some elements in commonality. The essential element in both is the challenge or threat or likely threat to the sovereignty, security, integrity and unity of India. While Section 15 requires some physical act like use of bombs and other weapons etc., Section 2 (1)(o) takes in its compass even a written or spoken words or any other visible representation intended or which supports a challenge to the unity, sovereignty, integrity and security of India. The said offences are related to the Defence of India and are covered by Entry 1 of the Union List. 
62. Moreover, the meaning of the term ‘Unlawful Activity’ in the MCOCA is altogether different from the meaning of the term ‘Unlawful Activity’ in the UAPA. It is also pertinent to note that the MCOCA does not deal with the terrorist organisations which indulge in terrorist activities and similarly, the UAPA does not deal with organised gangs or crime syndicate of the kind specifically targeted by the MCOCA. Thus, the offence of organised crime under the MCOCA and the offence of terrorist act under the UAPA operate in different fields and are of different kinds and their essential contents and ingredients are altogether different.
63.The concept of insurgency under Section 2(1) (e) of the MCOCA, if seen and understood in the context of the Act, is a grave disturbance of the public order within the state. The disturbance of the public order, in each and every case, cannot be said to be identical or similar to the concepts of terrorist activity as contemplated respectively under Section 2(1)(o) and Section 15 of the UAPA. Moreover, what is punishable under the MCOCA is promoting insurgency and not insurgency per se.
64. The aforesaid analysis relating to the essential elements of offence of ‘promoting insurgency’ under Section 2 (1) (e) of the MCOCA and the offence of terrorist act and unlawful activity under Section 15 and Section 2 (1)(o) of the UAPA respectively, clearly establishes that the UAPA occupies a field different than that occupied by the MCOCA. There is no clear and direct inconsistency or conflict between the said provisions of the two Acts.
65. We therefore, for the reasons mentioned above, concur with the final decision reached by the High Court in the impugned judgment and repel the challenge unhesitatingly.

The Court also made interesting observations on the concept of 'public order', defining the expression and explaining its ambit in the following terms;

30. The Constitution Bench of this Court in Madhu Limaye v. Sub-Divisional Magistrate, [(1970) 3 SCC 746], while adopting and explaining the scope of the test laid down in Dr. Ram Manohar Lohia v. State (supra), stated that the State is at the centre of the society. Disturbances in the normal functioning of the society fall into a broad spectrum, from mere disturbance of the serenity of life to jeopardy of the State. The acts become more and more grave as we journey from the periphery of the largest circle towards the centre. In this journey we travel first though public tranquility, then through public order and lastly to the security of the State. This Court further held that in the judgment of this Court, the expression “in the interest of public order” as mentioned in the Constitution of India encompasses not only those acts which disturb the security of the State or acts within ordre publique as described but also certain acts which disturb public tranquility or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression “in the interest of public order” is very wide. 
31.The meaning of the phrase “public order” has also been determined by this Court in Kanu Biswas v. State of West Bengal [(1972) 3 SCC 831] where it was held that the concept of “public order” is based on the French concept of “ordre publique” and is something more than ordinary maintenance of law and order.
32. It has been seen that the propositions laid down in the above noted cases have been time and again followed in subsequent judgments of this Court and still govern the field.
 Have a look at the decision.

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